ML20091P548
| ML20091P548 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 06/11/1984 |
| From: | Trowbridge G GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| Shared Package | |
| ML20091P551 | List: |
| References | |
| OL, NUDOCS 8406130095 | |
| Download: ML20091P548 (14) | |
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'84 JJN 12 A11 :51 June 11, 1984 t r. 0-
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C0CE. TING & L.
BRMICH UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-424 Cd 4
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50-425 d6 (Vogtle Electric Generating Plant, )
Units 1 and 2)
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APPLICANTS' RESPONSE TO CPG'S REQUEST FOR A WAIVER OF 10 C.F.R. S 51.53(c)
I.
Introduction In its " Supplement to Petition for Leave to Intervene and Request for Hearing," filed on April 11, 1984, Petitioner-Cam-paign for a Prosperous Georgia (CPG) proposed a contention, CPG-2, alleging that there is no reasonable assurance that the production. capacity of Plant Vogtle vill be-needed.
Appli-cants,.in their " Response lto GANE and CPG Supplements to Peti-tions for Leave to Intervene" '(May.7, 1984)~,~ opposed the:admis-sion of this contention as barred.byLthe1 Commission's regulations,'10 C.F.R.ES 51.53(c).~ - For.th'el same' reason, u thel NRC Staff'also. opposed the admission of the contention..NRC:
Staff Response to-Supplements 1to; Petitions:forxLea've'~to Inter
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Lvene'and Request for Hearing Filed.by GeorgiansEAgainstjNuclear 2
1 Energy and : Campaign L for ~ a Prosperous Georgiaf(May' l'4,..-1984)..
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Subsequently, CPG acknowledged the bar, but on May 27, 1984 filed a " Request for a Waiver of 10 C.F.R. 51.53(c) Pursu-ant to 10 C.F.R. 2.758."l/
During the Special Prehearing Con-ference on May 30, 1984, CPG submitted further material in sup-port of its Request.2/
Applicants continue to oppose the admission of proposed contention CPG-2.
CPG has failed to make a prima facie showing of special circumstances that are such that application of 10 C.F.R.
S 51.53(c) would not serve the purposes for which it was adopted.
Accordingly, CPG's Request for a Waiver should be de-nied and CGP-2 rejected.
II.
Standards for Waiver The only ground for a petition for waiver of a rule is
-that there exist special circumstances with respect to the sub-ject of the proceeding which are such that the application of the rule would not serve the purposes for which it was adopted.
10 C.F.R.
S 2.758(c).
The procedure entails a persuasive, evi-dentiary showing. Carolina Power & Licht Co. (Shearon Harris 1/-
In addition, CPG' amended its discussion of CPG-2 to re-flect the statements made by Tim Johnson in the affidavit ac-companying the request-for waiver.
CPG Amendment to Supplement to Petition for Leave to' Intervene and. Request for Hearing,.
filed May 27, 1984.
2/
To permit' Applicants to review this supplemental: material, the Board granted-Applicants' request that the time period'for response to CPG's Request for a Waiver should run from the date
. of the Special Prehearing Conference.- Tr. at'10.
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Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C.
2069, 2073, 2080 (1982).
The petition must be accompanied by an affidavit that identifies the specific aspect of the subject matter of the proceeding as to which application of the rule would not serve its intended purpose, and it must set forth with particularity the special circumstances alleged to justify the waiver.
10 C.F.R. 5 2.758(b).
If the presiding officer determines that a prima facie showing has been made, he may certify the matter to the Commis-sion for determination.
Otherwise, the petition must be de-nied.
10 C.F.R. S 2.758(d).
h III.
The Need for Power Rule and its Rationale As explained by the Appeal Board in Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2),
ALAB-422, 6 N.R.C.
33 (1977), "'[nleed for power'" is a short-hand expression for the ' benefit' side of the cost-benefit bal-ance which NEPA mandates for a proceeding considering the li-censing of a nuclear power. plant."
Id. at 90.
"A nuclear plant's principal benefit is of course the electric power it generates.
Hence, absent some 'need for power,' justification for building a~ facility is problematical."
Id., citina Duke Power Co. (Catawba Nuclear Station, Units 1 and 2)~,_ALAB-355, 4 N.R.C. 397, 405 (1976).
At the construction _ permit' stage, an-applicant meets'its burden'of proving need for: power-_if"it t 4
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shows "that its projections of demand are reasonable and that additional or replacement capacity is needed to meet that de-mand."
Public Service Co. of Indiana, Inc. (Marble Hill Nucle-ar Generating Station, Units 1 and 2), ALAB-459, 7 N.R.C.
- 179,
~ 185 (1979); Enercy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 N.R.C.
67, 77 (1976);-Niacara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 N.R.C.
347, 352-53, 366-67 (1975).
Whether other viable energy sources exist is part of the collateral NEPA inquiry into alternatives.
NEPA requires an agency to consider whether there are environmentally pre-ferrable alternatives to a given proposal.
42 U.S.C.
S 4332(c)(iii).
Thus, if there is a need for power, alterna-tives to supply that need must be considered.
However, if.an environmentally preferrable alternative does not exist, there need be no cost-benefit balancing of alternatives.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 N.R.C.
155,-162 (1978).
NEPA does not make the NRC responsible for assessing whether a proposed nuclear plant would be the most financially advantageous way for a utility to-satisfy its cus-tomers' need for power.. Id. at 163.-
The NRC considers both need-for power,and-alternativeLen-ergy sources as part.of its NEPA analysis at the construction
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permit stage of nuclear powerfreactor licensing.
461 Fed. Reg.
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39440 (1981); 47 Fed. Reg. 12940 (1982).
See Niagara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2),
ALAB-264, 1 N.R.C.
347, 353-72 (1975).
As the Commission explained in proposing its need for power / alternative energy source rule:
The construction permit proceeding ". the appropriate forum in the Commission's two step licensing process for resolution of these issues.
Prior to the start of con-struction there has been little environ-l mental disruption at the proposed site and only a relatively small capital investment has been made by the license applicant.
Hence, real alternatives to construction and operation of the proposed facility exist, including no additional generating capacity at all if no "need" exists or gen-eration of needed electricity by some non-nuclear energy source.
46 Fed. Reg. 39440 (1981).
The Commission determined, however, that consideration of these issues is not necessary at the operating license stage.
As the Commission explained in its proposed rule:
The situation is significantly different at the operating license stage.
This stage of the licensing process is reached only after a finding at the construction permit-stage that there existed a need for the power and that on balance, no superior alternative energy sources existed.
At ~ the time of the operating license decision, construction related environmental-impacts have already occurred at the site and-the construction costs have been incurred by1the licensee.
'The facility'is essentially' completely con-structed and ready to operate when.the Com-mission's' Atomic Safety and Licensing Board
' renders its decision on the operating license application..
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Operation of a nuclear power plant entails some environmental cost which should be justified under NEPA, by some benefit from plant operation.
In all cases to date, and in all foreseeable future cases, there will be some benefit in terms of either meeting increased energy needs or replacing older less economical generating capacity.
Expe-rience shows that completed plants are in fact used to their maximum availability for either purpose.
Such facilities are not abandoned in favor of some other means of generating electricity.
For purposes of this proposed rule the Commission has as-sumed, conservatively, that the plant is not needed to satisfy increased energy needs, but rather is justified, if at all, as a substitute for other generating capac-ity.
NEPA also requires the Commission to con-sider alternatives to the proposed action.
This is not to say that need for power and alternative energy source issues previously considered in the construction permit pro-ceeding need be reconsidered at the op-erating license stage.
On the contrary, NEPA does not require the Commission to du-plicate at the operating license stage its review of alternatives absent new informa-tion or new developments. Calvert Cliffs' Coordinatina Committee, Inc. v.
A.E.C.,
449 F.2d 1109, 1128 (D.C. Cir. 1971).
Union of Concerned Scientists v.
A.E.C.,
499 F.2d 1069, 1079 (D.C. Cir. 1974).
In reaching its decision on the issuance of a con-struction permit, the Commission will have found that, on balance, no superior' alter-native energy source exists,:and that the-environmental consequences of-the con-struction and operation of the proposed plant,'are small relative to the antici-
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pated benefits.
There has never been:a finding in a Commission' operating license proceeding that a viable. environmentally.
superior alternat'ive tojoperation of the nuclear facility exists.. Therefore, past' experience-suggests that. rarely will an
' alternative energy'sourcen including;use of an existing fossil-fired' unit as substitute L
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for the nuclear plant, be found environ-mentally superior to the nuclear plant.
Unless the nuclear plant has environmental disadvantages in comparison to reasonable alternatives, differences in financial cost do not enter into the NEPA process.
But if there are available alternatives which would result in lesser adverse environ-mental effects, then a cost-benefit analy-sis would be performed in reaching a li-censing decision.
Such a decision would, of course, include the possibility of not allowing the operation of the nuclear plant.
See Consumers Power Company (Mid-land Plant, Units 1 and 2), ALAB-458, 7 N.R.C.
155, 161-168 (1976).
Hence it is only after an environmentally superior alternative has been identified that eco-nomic. considerations become relevant.
In the specific context of alternative energy source issues in operating license proceed-ings, the NEPA issue is whether an environ-mentally superior alternative exists.
If one does exist, then economic considera-tions are considered in the cost-benefit balance and may offset environmental disad-
. vantages.
Reports available to the Commission show that the economic costs of operating com-pleted nuclear power plants have been below the operating costs of other available methods of baseload fossil genera-tion.
Therefore, given the apparent economic advantages of the operation of ex-isting nuclear plants, the' Commission be-lieves that even an alternative which is shown to be marginally environmentally-su-perior in comparison to operation of a nu-clear facility is unlikely to tip the NEPA cost-benefit balance against issuance of operating license.
Based on all'of the above, the Commission believes that case-specific need for power and alternative energy source; evaluations need not be included in the. environmental evaluation for a particular-nuclear. power plant operating license; An exception L '
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would be made to this rule if, in a partic-l ular case, special circumstances are shown in accordance with 10 C.F.R. 2.758 of the Commission's regulations.
Such special circumstances could exist if, for example, it could be shown that nuclear plant opera-tions would entail unexpected and signifi-cant adverse environmental impacts or that an environmentally and economically superi-or alternative existed.
46 Fed. Reg. at 39441 (footnotes omitted).
The Commission reaffirmed these conclusions in its final rule.
47 Fed. Reg. 12940-43 (1982).
This rule, 10 C.F.R.
S 51.53(c), prohibits a presiding officer from admitting con-tentions concerning need for power or alternative energy sources in an operating license proceeding.
In summary, while the issues of need for power and alter-native energy sources are slightly different, the reason the Commission excluded each from :onsideration in operating license proceedings is the same; the purpose of the exclusion "is to avoid unnecessary consideration of issues that are not likely.to tilt the cost-benefit balance."
47 Fed. Reg. at 12940.
With respect to'need for power, the premise is that ex-perience has shown that a completed plant is always used to its maximum availability either to meet increased energy needs or to replace older less economical generating capacity.
47 Fed.
Reg. at 12940, 12942.
With respect to alternative energy sources, the premise is that no viable alternative to a com-pleted plant is likely to exist which could tip the-1
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cost-benefit balance against issuance of the operating license.
47 Fed. Reg. at 12940.
It is these premises which CPG must disprove to obtain a vaiver of the rule barring admission of need for power and alternative energy source contentions in this operating license proceeding.
IV.
CPG's Recuest for a Waiver CPG's amended discussion of its contention and the affida-vit accompanying the Request for Waiver address need for power and perhaps alternative energy sources.
CPG asserts that there is over-capacity.
Alternatively, CPG argues that even if addi-tional capacity were needed, there are alternatives to Vogtle.
At the outset, it should be noted that CPG's affiant fails to establish his qualifications, which is necessary to support
-his averments.
Therefore, his statements, particularly those which are opinion or conclusory, are entitled to little if no weight.
Cf. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C.
397, 408-409 (1976).
Accordingly, as a matter of proof, CPG has failed to make a persuasive, prima facie showing in support of its petition.
Even if CPG's failure to establish the qualifications of its affiant is ignored,-CPG's petition and supporting affidavit remain patently deficient.
With' respect to the need for. power, the affidavit of Alfred W. Dahlberg, III is attached.
CPG only addresses
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Georgia Power Company's past actual territorial energy sales growth rates and past projections of demand which proved dif-ferent from the annual peak demands actually experienced.
It does not address the company's future capacity or energy requirements for the years in which Plant Vogtle will be opera-tional; and CPG fails even to mention the requirements of the other three owners of Plant Vogtle who now own the majority of the plant.
CPG does not bother to contend that Plant Vogtle's capacity and associated energy will not be used, but instead registers complaints about the accuracy of past estimates.
CPG accordingly fails to make a showing with respect to need for power which is even facially equivalent to that in Duouesne Licht Company et al. (Beaver Valley Power Station, Unit 2),
LBP-84-6, 19 N.R.C.
slip op. at 3-16 (January 27, 1984),
which addressed future requirements of all the owners of that plant, albeit in a cursory fashion.
Nor is there any reason for. CPG to make such vague and' irrelevant assertions.- Georgia Power Company's generation expansion program, including all planned additions, retirements, projected-loads, sales, and purchases through 1996 was presented in its last retail rate case,.in which CPG participated.
Instead of making any estimate.of future power require-ments, CPG-rests on the obvious observation:that load forecasts
' have' changed over the.last decade.
Changes in-forecasts hardly constitute "special. circumstances."
The Commission promulgated-,.
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its need for power rule in 1982 and was certainly aware that the oil crisis and rising energy costs in the 1970s had affect-ed demand forecasts.
Moreover, as the Appeal Board indicated in Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 N.R.C.
347, 357 (1975), the ques-tion raised by changes in demand forecasts is not whether addi-tional generating capacity will be needed, but when.
There-fore, CPG's discussion of whether Vogtle would be needed to meet increased energy needs is inadequate.
CPG also makes no attempt to show that plant Vogtle would not be used to replace older, less economical generating capac-ity.
As Applicants' Operating License Stage Environmental Re-port demonstrates, the operating costs of Vogtle are less than the operating costs of existing fossil fuel generating capaci-ty.
OL-ER, S 8.1.1.4.
See also attached affidavit.
CPG's failure to demonstrate that Vogtle would not be used to replace this older; less economical operating capacity is fatal to its request for waiver.
Ducuesne Licht Company. et al. (Beaver.
Valley Power Station, Unit 2), LBP-84-6, 19.N.R.C.
slip op, at 13 (January 27, 1984).
CPG's petition and affidavit are similarly deficient in their discussion of " alternatives" to Vogtle.
CPG points to conservation and solar power.
However, conservation is not a true alternative energy source; rather, it: is:an element.of'the demand forecasts.
Consumers Power Company (Midland Plant,
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Units 1 and 2), CLI-74-5, 7 A.E.C. 19, 22-23 (1973).
Conserva-tion is a consumer response to price increases and is reflected in the price elasticity of demand.
Installation of a residen-tial solar water heating system is but one method by which con-1 sumers practice conservation.1/
The Commission explicitly considered conservation in the need for power rulemaking.
The Commission concluded:
i If conservation lovers demand, then utility j
companies take the most expensive operating plants off-line first. :Thus a completed nuclear plant would be used as a substitute for less economical generating capacity.
47 Fed. Reg. at 12941.
In other words, conservation may reduce the need for increased carscity, but new nuclear generating _ca-for existing pacity should still'be considered as a replacement fossil fuel generating capacity.
CPG's petition and affidavit do not refute this conclusion, and their sketchy allusions to con-servation and solar power do not amount to a showing orf"special circumstances."
.Perhaps CPG is indeed advocating the useLof solar, power as an " alternative energy source."- However,. CPG makes.no attempt to quantify the amount offgenerating capacity that might be obviated solar. energy.A/
The CPG affidavit makes no' attempt'to. compare.
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-CPG also mentions,iat the;end.of.its-Request,1cogeneratio'n
.and home insulation,:however, CPG provides no further dis-
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cussion of--these methods'of conss vation' whatsoever.
The letter from the. Georgia Solar-Coalition, which CPG 11 /
submitted duringEthe Prehearing Conference;-estimates _the:sav-4
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J quantitatively the costs and impact of operating Vogtle with the I
costs and impacts of implementing such methods of conservation as solar energy, and it therefore fails to make a prima facie 2
showing that this alleged alternative is " viable," "substantially environmentally superior," and might tip the NEPA cost-benefit balance against issuance of the operating license.E/
See Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C.
1649, 1665 (1982).
Instead, it offers a few superficial comments and the speculative opinion of a lay affiant.
CPG has not even approached meeting its burden.
See Beaver Valley, LBP-84-6, supra, 19 N.R.C.
at
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at 14-15.
4 (Continued) ings in Btus which a residence might obtain by a solar domestic het water system.
However, it does not indicate how many of these systems could (or are likely to be) installed and over
.what time frame, nor does it indicate the extent-to which in-creased use of solar power would reduce ~ demand for electricity _
as opposed to reducing the demand for gas.
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CPG makes the irrelevant and conclusory statement, without any factual support,~that "a. solar water heating system could be installed on every household'in Georgia at less costithan the. remaining cost of the Vogtle Nuclear Plant."- 'But it is the operatina' cost of_Vogtle compared to the. costs of alternatives-(including the cost of constructing 1those' alternative sources i
if they are not' presently in existence) that is relevant.
Carolina Power & Liaht Co.'(Shearon'. Harris Nuclear Power Plant,
' Units 1 and 2),"LBP-83-27A, 17 N.R.C..971-(1983); Public Service Company-of'New Hamoshire.'et al._ (Seabrook. Station, Units 1 and 2), LBP-82-106, 16 N.R.C.
1649, 1665 (1982);
Consumers Power Co.'(Midland Plant, Units.1 and 2), LBP-82-95, 16 N.R.C.:1401, 1404 (1982). <
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9 V.
Conclusion In conclusion, CPG fails to make a prima facie showing that there is no need for the Vogtle capacity or that there are via-ble, substantially environmentally superior alternatives that could tip the NEPA cost-benefit balance.
In particular, CPG to-tally fails to address whether Vogtle would be used to replace older, less economical generating capacity.
Accordingly, CPG's
" Request for a Waiver of 10 C.F.R. 51.53(c) Pursuant to 10 C.F.R. 2.758" should be denied, and CPG-2 should be rejected.
Respectfully submitted,
- SHAW, ITTMAN, POTTS & TROWBRIDGE M./
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s M(orgg/F. Trowbridge,[P.C.
& nest L.
- Blake, P.C.
David R. Lewis t
Counsel for Applicants Dated:
June 11, 1984..
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